At the 17th Ontario Employment Law Conference held on June 2, 2016, I had the great pleasure of speaking with Renu Mandhane, Chief Commissioner of the Ontario Human Rights Commission (“OHRC”).
Along with the Human Rights Tribunal of Ontario and the Human Rights Legal Support Centre, the OHRC is one part of the Ontario Human Rights System. The OHRC plays a crucial role in preventing discrimination, and promoting, protecting and advancing human rights through research, education, targeted legal action and policy development.
Ensuring compliance with the Human Rights Code
With OHRC’s recent position on gender-specific dress codes, and the increase attention in the media regarding bars and restaurants requiring women to wear high heels, low-cut tops and short skirts, I thought it would be beneficial for our readers to get Ms. Mandhane’s take on the issue of gender specific and sexualized dress codes in the workplace. In addition, on what employers should be doing to ensure that their dress codes are in compliance with Ontario’s Human Rights Code (“Code”).
Ms. Mandhane started off by stating,
“I think the first thing that’s important to know is that it’s perfectly ok for an employer to have a dress code […] we understand that businesses sometimes want to have a uniform look and feel to their establishment.” That is, if an employer’s dress code is that employees are generally to wear sleeves and pants or skirts that are no shorter than two inches above the knee, that is reasonable. Rather, the concerns for the OHRC include “dress codes that are overly restrictive or rigid”. For example, men wear “X,Y,Z” and women wear “A,B,C.”
So what should employers be taking into consideration when it comes to dress codes in the workplace? The OHRC is encouraging employers to have a range of options, flexible alternatives, so that there is almost a menu of choices of what employees can wear to meet the requirements of the dress code. Although the OHRC’s position on dress codes focused on women, as the story played out in the media and on social media, the OHRC became aware that rigid dress codes can even impact various races and people who practice certain religious faiths.
So employers, when it comes to workplace dress codes, the main idea is, “if you have a dress code make it one that’s flexible, that can accommodate different people and different needs.”
Why are sexualized dress codes still an issue?
The presence of sexualized dress codes in establishments, such as bars and restaurants, is not a new issue. Therefore, I thought it would be significant to ask Ms. Mandhane why she thinks such an issue is still prominently discussed and still deemed a concern. Also, what is the OHRC doing differently today to address and combat the issue compared to five or even 10 years ago.
The OHRC has previously published a guide in relation to human rights at work which discusses gender dress codes being discriminatory. What the OHRC saw through media stories is that this issue is still persisting in the marketplace. The OHRC too had a moment of “why is this still happening […] it’s 2016, and why is it that when you go into a restaurant there are still girls who are required to wear tank tops, short skirts and high heels.” So the OHRC decided that it was the moment to remind people and organizations of the OHRC’s long standing position that this is a form of discrimination.
Ms. Mandhane brought forward an important point that, it is so normalized in our culture that when you think of what an attractive woman or a professional woman is, we have a very stereotypical idea of what that is. It was interesting for the OHRC to see the huge response to their position because in many ways the OHRC’s position is basic human rights law (i.e. employers having different dress codes for men and women is clear discrimination). Ms. Mandhane thinks that the OHRC’s position tapped into, in many ways, people’s own really deeply held stereotypes about men and women.
Employers’ reactions to the OHRC’s recent policy position on gender-specific dress codes
Since the OHRC’s release of its policy position on gender-specific dress codes on March 8th, I naturally thought there would have been a lot of push-back from employers. I was surprised to hear from Ms. Mandhane that in fact that was not the case. Since releasing the dress codes policy, the OHRC has had meetings with both Restaurants Canada and with the Ontario Restaurant Hotel & Motel Association. The OHRC is going to work with them to let their members know about their obligations under the Code. The OHRC is also planning to write to the largest corporate restaurants to advise them again, to look at their dress code policies and to ask whether they are in compliance. In all, Ms. Mandhane thinks that a lot of restaurants are quite willing to make positive changes.
The OHRC is not only advocating the law when it comes to dress codes, but also that addressing the issue is good for employee morale. “If women have to wear three inch heels to work every day […] many women I know who have worked in that industry and it’s really tough […] so I think that it’s actually a good thing in terms of your employment culture.”
The issue of sexual harassment
The issue of sexual harassment was also discussed in relation to gender-specific and sexualized dress codes. Ms. Mandhane thinks that there is a big correlation between dress codes and sexual harassment and a poisoned work environment. What was compelling to the OHRC is that there is research out of the United States that show when men and women have different dress codes there is actually higher rates of sexual harassment in the workplace. To Ms. Mandhane, “[t]hat just makes sense […] if you have to dress in a sexualized way and you serve patrons who are consuming alcohol, the risk that you are going to be sexually harassed in that workplace obviously is higher.”
What the OHRC would like to accomplish
What would the OHRC like to see and have accomplished when it comes to combating sex discrimination, more specifically the issue of gender-specific and sexualized dress codes in the workplace? Ms. Mandhane expressed that if within one year and a half big corporate owners in the restaurant industry have committed to changing their dress codes and bringing them into compliance with the Code, that would be a huge impact because they employ thousands of people. Ms. Mandhane thinks that if the OHRC were able to work with such industry groups (i.e. restaurants and bars), this would open the door into discussing other human rights issues.
Ms. Mandhane notes that while restaurants and bars are fairly good at accommodating customers, she thinks that when it comes to the employment side and the obligations they have to their employees, many of them do not actually really understand that the Code even applies to them. Ms. Mandhane thinks that the OHRC needs to provide some education, and she is hoping if that can be done, she would be really happy about that as well.
Interested in reading more on the OHRC’s position on sexualized and gender-specific dress codes? The OHRC recently published FAQs on the topic in addition to the OHRC policy position on gender-specific dress codes.
Takeaway for employers
When setting dress code policies, employers must heed existing human rights requirements. Dress codes cannot discriminate on the basis of sex, creed (religion) or race, and an employer’s duty to accommodate extends to include dress codes.
Employers have a lot to consider if they choose to implement a dress code in their workplaces. For help on what such a policy should include, consult the Human Resources PolicyPro published by First Reference for a commentary on the subject and a compliance based sample policy.